' The facts giving rise to this Constitutional petition are that the petitioner was married to respondent No, 1, Muhammad Hayat, in the year 1989. They lived together for about four months.
After which disputes arose between the parties and petitioner returned to the home of her parents.
Thereafter, the case of the petitioner is that respondent No, 1 pronounced oral divorce and after completing Iddat period, the petitioner contracted second marriage with one Lal on 7-3-1990 which was duly registered with Nikah Registrar Bohwana, Tehsil Chiniot, District Jhang. Thereafter, respondent No,1 instigated the maternal-uncle of petitioner to get a case under section 11 of Zina Ordinance registered against the petitioner and said Lal on the basis that she was still married to respondent No, 1 and the Nikkahnama with Lal is forged.
2. The petitioner filed a suit before learned Judge Family Court, Chiniot on 30-7-1992. It was averred in the plaint that she had been divorced by respondent No, 1 after which she validly contracted second marriage and she was pregnant from second husband and she prayed that a decree for jactitation of marriage be granted in her favour.
3. Respondent No, 1 contested the suit and also filed counter-suit for restitution of conjugal rights.
He levelled allegations against the petitioner and Lal to the effect that Lal had abducted the petitioner while she was still married to him, he denied the allegation of oral divorce and asserted that the petitioner was still married to him.
4. The suit of the petitioner was dismissed on 16-1-1993 for non-prosecution since the petitioner was arrested and tried in the case under Zina ordinance filed at the instigation of respondent No, 1 and therefore she could not pursue the suit for jactitation of marriage before the trial Court. The suit was restored on 24-4-1993 on application of the petitioner, forwarded through Jail authorities.
Respondent No, 1 filed a counter-suit for restitution of conjugal rights on 31-5-1993.
5. The learned Judge Family Court consolidated both the suits and framed the following consolidated issues:--
(1) Whether the defendant has legally divorced the plaintiff, if so, its effect? OPP
(2) If Issue No, 1 is proved, then whether the plaintiff has contracted lawful second marriage with Lal defendant No, 2 of the consolidated suit? OPP
(3) Whether the impugned Nikahnama is forged and fictitious, if so, its effect? OPP
(4) Whether the plaintiff is estopped by her words and conduct to bring the present suit? OPD
(5) Whether the plaintiff has no cause of action? OPD
(6) Whether the suit is barred under Order 23, Rules 1 and 2 of C.P.C.? OPD
(7) Whether the defendant is entitled to the restitution of conjugal rights? OPD
(8) Relief.
6. The learned Judge Family Court decided Issue No, 1 in favour of the petitioner and on the basis of findings regarding Issue No, 1 and the Nikkahnama, Exh. P1, he found Issue No, 2 in favour of the petitioner. Consequent to these findings, the Issues Nos. 3, 4 and 5 were also found in favour of the petitioner. Issue No, 6 was also decided in favour of the petitioner and the trial Court held that the restoration of petitioner's suit was not barred under Order XXIII, rules 1 and 2 of C.P.C. Since the petitioner had not been able to pursue the first suit on account of being in Jail. Issue No, 7 was decided against respondent No, 1 on the basis that the respondent had not challenged the second marriage of petitioner in his second suit for restitution of conjugal rights and had also not prayed for the cancellation of the disputed second marriage in the said suit. Since it had been proved that the petitioner was divorced by respondent No, 1 and married with Lal after observing Iddat period, learned Judge Family Court held that respondent No, 1 was not entitled to restitution of conjugal rights and he decreed the suit for jactitation of marriage in favour of the petitioner.
7. Respondent No, 1 filed an appeal before respondent No, 2, Additional District Judge, Chiniot, against the above judgment and decree. Respondent No, 1, after perusal of the evidence, set aside the findings of the learned trial Court on Issues Nos. 1 and 2. He accepted the appeal of respondent No, 1 and while deciding the suit of restitution of conjugal rights in favour of respondent No, 1, dismissed the suit of petitioner for jactitation of marriage vide order dated 23-2-1994.
8. The petitioner has assailed the judgment of respondent No, 2 through this Constitution petition and has prayed that the same be declared without lawful authority and that judgment and decree of learned 'Judge Family Court ' dated 20-12-1993 be restored. The averments in the petition are that the suit of the petitioner had been decreed by the learned trial Court on the basis of cogent evidence and respondent No, 2 has misread the same evidence while reversing the order of the learned trial Court; that respondent No, 1 had filed a suit for restitution of conjugal rights merely as counterblast purely out of vindictiveness. He had also instigated a case under Zina Ordinance against the petitioner and got her arrested in the same and was deliberately dragging the petitioner into criminal and civil litigation in order to make her life miserable.
9. Learned counsel for the petitioner has argued that when oral Talaq has been proved in favour of the petitioner on the basis of evidence of two witnesses who were present at the time of Talaq, there is no ground for respondent No, 2 to set aside the findings of the learned Judge Family Court in respect of validity of Talaq. He has also argued that on the basis of decision of respondent No, 2 in favour of respondent No, 1, the petitioner as well as Lal have been convicted under Zina case to seven years' R.I. As well as fine. The petitioner and Lal have filed an appeal before the Federal Shariat Court and the fate of the appeal hangs on the decision of the present petition.
10. Learned counsel for respondent No, 1 has argued that the judgment and decree of learned Judge, Family Court was based on no evidence and the impugned judgment of. Respondent No, 2 has been passed after proper appraisal of the evidence on record. That respondent No, 1 never divorced the petitioner and petitioner concocted story of Talaq in order to manoeuvre a decree in her favour by the learned Judge, Family Court; that under section 7 of Muslim Family Laws Ordinance, 1961, notice of Talaq must be registered with the Chairman, Union Council and a copy of the same is to be supplied to the wife against whom Talaq is being pronounced by husband and such Talaq shall be effective after expiry of 90 days from the date notice is delivered to the Chairman unless it is revoked earlier. Since no such notice of Talaq was given in the present case, there is no valid Talaq in the eye of law. Thus, the petitioner has remarried without getting divorce or a decree for dissolution of marriage in her favour and is liable to be dealt with in accordance with the law since she has violated the provisions of Shariah.
11. I have heard the learned counsel for the parties and also perused the record. The petitioner as P.W.1 has deposed on oath that she was divorced by respondent No, 1 at the house of her parents in front of witnesses after efforts of reconciliation had failed. Her testimony is supported by the statements of P.W.3 Dost Muhammad and P.W. 4 Mathela who have deposed that they were present at the time when oral divorce was pronounced by respondent No, 1 at the house of the petitioner's parents. All the three witnesses also deposed that the petitioner married with Lal after completion of Iddat period and Nikahnama Exh. P1 has been placed on the record in support of their statements. During cross-examination, the statements of these witnesses could not be shattered nor was any evidence led by respondent No, 1 to rebut the pronouncement of oral Talaq.
Minor discrepancies in the statements of the witnesses above-mentioned can be attributed to their being rustic villagers who are admittedly illiterate. Thus, the factum of oral Talaq having been pronounced by respondent No, 1 stands proved from the record.
12. The objection of learned counsel for respondent No, 1 that oral Talaq even if proved is invalid since no notice under section 7 of Muslim Family Laws Ordinance, 1961 was given by respondent No, 1 to Chairman, Union Council or to the petitioner is not sustainable. It has been held in case titled Allah Dad v. Mukhtar and another (1992 SCM R 1273) that failure to send notice to Chairman, Union Council does not render the divorce ineffective in Shariah. The same has been held in another case titled Mst. Zahida Shaheen and another v. The State and another (1994 SCM R 2098). Respondent No, 1 had assailed the genuineness of the Nikahnama, however, he has not been able to lead any evidence to the effect that the Nikahnama is forged. There is a rebuttable presumption regarding the validity of public documents. Since this presumption has gone unrebutted, the Nikahnama stands as a genuine document and it is stated in the Nikahnama that the petitioner has entered into Nikah after being divorced. Respondent No, 2 has not properly appraised the evidence regarding pronouncement of oral Talaq nor has he taken into consideration the fact that the genuineness of Nikahnama of the petitioner with Lal has gone unchallenged. Respondent No, 2 has also not taken into consideration the fact that the petitioner was pregnant during the proceedings for jactitation of marriage. He passed the impugned order setting aside the judgment of the learned Judge, Family Court and consequence of his order would be that child born to the petitioner would be considered illegitimate. In such a situation, the law leans in favour of validity of marriage and legitimacy of a child who is innocent. This consideration was totally disregarded by respondent No,
2. He also failed to take into consideration the fact that in pursuance of his judgment, the petitioner and Lal would be convicted and sentenced in the case pending against them under the Zina Ordinance.
13. In view of the above discussion, I hold that the impugned judgment of respondent No, 2 dated 23-2-1994 is without lawful authority and of no legal effect. Consequently, it is set aside and the judgment and decree dated 20-12-1993 passed by the learned Judge, Family Court, Tehsil Chiniot, District Jhang is restored. This petition is accepted without any order as to costs.